The HR Blog
A guide to Race Discrimination in the workplace from Monaco Solicitors
By considering race discrimination in white-collar work environments, Alex Monaco guides you through the experiences of a BAME (black, Asian and minority ethnic) employee subjected to race discrimination, and advises you of what to do if you have been racially discriminated against at work.
‘Race’ as referred to in this article includes colour, nationality and ethnic or national origins.
This guide covers:
Claiming race discrimination in the workplace
Race discrimination in the workplace is perhaps the most serious of all claims that can be brought in an employment tribunal.
Broadly speaking, most claims of race discrimination in employment are for:
Other types of employment claims exist but are less common than the above two. They include:
(See our overview discrimination article for more detail on discrimination types and claim categories.)
Our credentials in employee race discrimination cases
Monaco Solicitors have represented clients in some of the most high profile and highest value race discrimination cases in the City of London in recent years. Each case was settled before trial, and some for amounts approaching £1,000,000.
Some of our claims have been against some of the largest banks, insurance companies and financial institutions in the world. So, we almost certainly have the most extensive experience of race discrimination cases of any employment law firm representing employees only in the UK.
Given our experience, we are well placed to delve deeper into the complexities of race discrimination cases than most other legal websites. So this article includes our analysis of a modern race discrimination case involving black, Asian and ethnic minority (BAME) employees in white-collar roles.
How does an employment race discrimination case develop?
These days, in a white-collar world, race discrimination is rarely overt. If it were, BAME workers would not be offered roles or achieving positions of influence in large organisations, which they do, as we have represented some of them.
BAME employees tend to be employed on a ‘non-discriminatory’ basis by medium to large organisations (ie all individuals are treated the same), either because individuals will be judged on the merits of their application, or as they recognise the benefits of and need for institutional diversity.
What triggers race discrimination against an individual employee?
Regardless of the initial intentions of your employer, it is usually once you have been employed for a few years that issues start where the organisation is institutionally racist or that there are racist individuals in the organisation.
In our experience, you, as the employee discriminated against, have a normal working relationship with your employer and other employees and do not witness any race discrimination until something untoward happens.
The event that triggers racial discrimination in a professional environment could be anything, but from experience, it’s usually if you are seeming to challenge authority.
Perceived challenges to authority by BAME employees
The authority of whom is being challenged is invariably a white and middle-class senior middle manager.
What they perceive as a challenge of their authority by you can include;
Each of these scenarios has triggered serious cases of race discrimination in claims that we have represented in the past 5 years. Most importantly, the BAME employee appears to be treated differently to a white colleague by challenging authority.
When race starts to become an issue
It is at that point, it seems that your race became an issue, despite not previously being a factor. In other words, an employer will happily employ BAME individuals that keep their heads down in the office. However, when they assert themselves in a manner that is perceived to be beyond their role, they become vulnerable to discrimination.
In our experience, this discrimination often begins behind closed doors and as the employee in question, are likely to be unaware of it. It usually starts with more senior colleagues discussing your behaviours between them and the event in which you were perceived to have challenged authority.
Where the senior colleagues begin to agree with one another about your behaviour, a closed environment is formed in which they feel comfortable discussing you as an employee of colour. If a colleague in that closed environment has racist views, eventually these views will be aired or intimated. That is racial discrimination.
When you first become aware of being discriminated against
At this point, the employee in question is usually still unaware of these conversations. Your first hint that something isn’t right would usually include being singled out for something or treated less favourably or slightly differently than other employees.
It’s usually very subtle and may not always be intentional, but senior colleagues are influenced by the closed discussions they are privy to.
This is where you are likely to start becoming concerned and more aware of your race, whereas you may not have previously even considered it. Something doesn’t feel quite right. In these circumstances, you are likely to start making subtle enquiries as to what you could have done wrong to cause this behaviour, or you may ignore it all in hope that it was a one-off. Sometimes it does go away: mostly it starts to get worse.
How the race discrimination worsens
Further incidents of subtle, less-favourable treatment start to occur, increasing your feeling of isolation. You may even hear racialised comments directed towards you or more generally, from colleagues. These don’t have to be overt.
Incidences like this that we know of, include open discussions about certain areas being “no-go areas” given their ethnic populations; perceptions that black people don’t eat at nice restaurants or like certain drinks; that they like certain music, come from an impoverished background and other such stereotypes. This is racial harassment and less-favourable treatment
Sometimes, racial slurs are even used in the office around the employee or directly to them. Many cases that we have acted in have included incidents where the “N” word or “P” word has openly been used on the office floor or directly at an employee.
Strangely, these words are rarely used out of direct malice towards the BAME employee. They are often poor attempts at replicating the language that white people assume is used by minority communities, or “jokes”, or throwaway comments. This too is undoubtedly harassment on the grounds of race.
When race discrimination becomes serious
Having seen a pattern of ‘low-level’ discrimination, you may also start to suffer more serious incidents of race discrimination. You may also face victimisation for having raised complaints about your treatment. In recent years, examples that we have come across include employees who have:
At this stage, it is vital that you seek legal advice as time limits for making claims of race discrimination are very short and the procedures you must follow to safeguard your employment rights are complex. (See our article on time limits for making a tribunal claim.)
Raising a grievance for race discrimination
At this stage, it is likely that you will wish to raise a complaint or grievance about the racial discrimination that you have suffered. (See our article on when to raise a grievance.)
Engaging with your employer’s grievance process is a step that you should almost always take, and we would recommend it in all but the most extreme cases, as it can affect levels of compensation.
The grievance complaint is also important as it is a document referenced heavily at any employment tribunal. For this reason, we strenuously advise that you do not write the grievance on your own, but to engage an expert employment law solicitor to assist you.
In our experience, many law firms – even those specialising in employment law – do not have real experts in employee race discrimination cases specifically, so we use the word “expert” advisedly here. (See below for more on legal representation.)
Making a data subject access request
Making an application under the General Data Protection Regulation (DSAR) is almost always something we recommend. This will allow you to find out what information the employer holds about you. In many instances, a data subject access request application will uncover important evidence of racial discrimination and victimisation.
The timing of the request and terms of reference is often key. This can be very technical, more so when dealing with large organisations.
It is advised that you obtain the terms of reference of the search from the company, to investigate, once the results have been disclosed, the thoroughness of that search.
In our experience employers will try to use devices such as legal privilege, relevance and confidentiality, in attempting to withhold documentation that is prejudicial to the company and which could be important evidence in a serious claim of discrimination.
The failure of a company to properly deal with a DSAR in a case of race discrimination could lead to further complaints of less favourable treatment and victimisation.
Often, someone raising a grievance alleging discrimination will suffer a ‘detriment’ (ie harm or loss of some kind) as a consequence of doing so. Raising a grievance or bringing proceedings against an employer for race discrimination is considered by the Equality Act 2010 as a ‘protected act’.
So if you suffer a detriment because you have done a protected act, you will have a claim for victimisation.
Victimisation is essentially retaliatory conduct, and the detriment you have suffered must be linked to the employer, or other employees, who are retaliating against you because you have, for example, raised a grievance alleging race discrimination, which is a protected act.
A detriment could be anything, but being ostracised at work, being placed on performance management or having false allegations made against you are some of the most common examples.
What to expect from a case of race discrimination
Cases of race discrimination call for serious consideration of both short and long-term tactics, depending on your specific needs and circumstances. These can be divided into two scenarios:
The first scenario is where an employee suffers discrimination and wishes to raise the issues with their employer, but then move on, as they believe that they can obtain another role relatively quickly.
The second scenario is where an employee has been discriminated against to such an extent that their mental health has deteriorated and their treatment has adversely affected their future.
While we are always led by our clients, in scenarios such as the first, we would look to achieve the best possible settlement for any claims against the employer through negotiations. In the second scenario, however, we would strongly advise our clients to litigate their claims to the fullest possible extent.
What is the value of your race discrimination case?
The value of a racial discrimination case depends on various factors, including: the nature of the discrimination suffered, your salary, any ‘injury’ (ie mental health) suffered and your future employment prospects. So, such a question has n straightforward answer.
The tactics and costs structures put into place by your lawyer should suit the nature of your claim. The goal is to achieve sufficient financial compensation to secure your transition to a new role, or the next step in your life, whatever that may be.
Can you conduct your race discrimination case yourself?
Our website is designed to help employees like you to help themselves in their legal employment cases. We do this by providing information and other materials so that you can take on your employer and win without having to worry about the costs of hiring a solicitor.
However, we advise that you engage a suitably qualified and experienced solicitor when it comes to race discrimination cases. If you have a strong case, you will likely be able to negotiate some kind of ‘no win, no fee’ representation deal so you will be able to afford it.
The issue of race discrimination is too important, too inflammatory politically, and too technical, for anyone who does not have a decade or more of experience with these cases to deal with.
Employers usually engage highly intelligent teams of lawyers from expensive corporate law firms to defend your allegations. These lawyers will work to defeat your claims or force you to under-settle your case. You need the best representation that your case can afford to successfully fight your case.
Choosing a good race discrimination lawyer
You need to choose the right employment law firm to help with your case with care, as it is critical to the outcome of your claim.
People being discriminated against in large organisations tend (not surprisingly) to seek recommendations for a lawyer from their colleagues or others working in similar organisations.
The problem with this is that these lawyers will usually be used to advising employers, rather than employees like you.
This can lead to the legal advice given to the employee being under-settled (ie settled below their potential or real financial worth).
Under-settlements can also happen when the advising lawyers are afraid of offending or causing upset and bad publicity to multinational corporations, as well as for other reasons such as insufficient experience with race discrimination cases.
This is ongoing in the UK and lawyers who work or have worked for large law firms are partially responsible for this, whether they realise it or not.
If you are experiencing race discrimination at work, we would strongly advise that you thoroughly explore the career and the history of the lawyer you propose to instruct for your case. This is to ensure that your representation has sufficient experience of fighting discrimination cases on behalf of employees without fear or favour.
Monaco Solicitors have acted in many cases of race discrimination in which our clients have secured significant sums in compensation. We would not under-settle a case.
So if you think your case of race discrimination requires legal representation, you may like to get in touch. Our team is highly professional and our terms include ‘no-win no-fee’ rates to be flexible and fair.